Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1956 No. 335 - Oct 26 1956
Attorney General Don Eastvold


A school district cannot condemn lands already devoted to a public use.

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                                                                October 26, 1956

Honorable Robert L. Nuber
Director of Aeronautics
Box 3, Boeing Field
Seattle 8, Washington                                                                                    Cite as:  AGO 55-57 No. 335

Dear Sir:

            On behalf of the Washington State Aeronautics Commission, you have requested our opinion concerning a question which we paraphrase as follows:

            Can Cashmere School District No. 122 condemn certain lands belonging to Chelan County and currently used as an airport?

            Our answer is in the negative.


            It would appear from your letter that Cashmere School District No. 122 has tentatively selected as one of three possible sites for a new high school, certain land owned by Chelan County and used in connection with the operation of the Cashmere‑Dryden airport.  Your letter indicates that the airport is used to a limited extent at the present time, and that it will presumably receive greater use in the future.

            The eminent domain statutes permitting school districts to condemn property do not specifically authorize condemnation of land already devoted to a public use.  Chapter 8.16 RCW.  In the absence of such authorization, this power cannot be inferred.

            That this is the rule is clear from the case of State ex rel. Cle Elum v. Kittitas County, 107 Wash. 326, 173 Pac. 698.  In that case, Kittitas County  [[Orig. Op. Page 2]] was attempting to exercise its right of eminent domain for the purpose of acquiring a right of way for a county road over land owned by the city of Cle Elum.  The land in question was held in connection with a reservoir.  All of it was not in actual use, but there was a reasonable expectation that it might be needed in the future.  The court stated at p. 328:

            "As we view it, it is unnecessary to determine whether the city owns the land over which it is proposed to construct the public road, in either its proprietary or governmental capacity.  The elementary rule is that the power of a quasi-public corporation or a public corporation to condemn property owned by a municipality does not exist unless clearly created by statute * * * Property acquired by a municipality which is necessary, or may reasonably be considered necessary in the future, for the use of the municipality in the performance of either its public or private functions, is not subject to condemnation unless that power has been expressly created * * *  The legislature, having conferred statutory power upon counties to condemn for county road purposes, has not gone to the extent of expressly allowing a condemnation for such purposes of the property of municipalities.  * * *"

            With particular reference to the power of school districts to condemn property already devoted to a public use, an opinion of this office to Mr. J. A. Adams, prosecuting attorney of Chelan County, dated June 11, 1928, contained the following language:

            "2. Nor do we believe the school district may acquire the land by eminent domain.  School districts may condemn for sites * * * but property already devoted to a public use cannot be taken for another public use which will materially impair or interfere with the former use, unless authorized by the legislature, either expressly or by necessary implication.  20 C.J. 602.  More general authority to condemn is insufficient (Citing cases.)"

            The conclusion we have reached is reinforced by an additional factor.  Your letter indicates that the district has three alternative sites in mind for its new school.  Even in those special cases where the courts have allowed property already devoted to a public use to be condemned for another public use, they have emphasized that the question of whether or not such condemnation is absolutely necessary is a matter to be considered.

             [[Orig. Op. Page 3]]

            State v. Whitman County, 45 Wash. 270.  It would seem apparent that this necessity is not present in the instant case.

            We trust the foregoing will prove helpful.

Very truly yours,

Attorney General

Assistant Attorney General